(dissenting):
With respectful regard for the views expressed by the majority I am unable to agree with the opinion, and therefore dissent. By equating “some elements of due process” which are required in the revocation of parole with proceedings by the Parole Board to determine whether parole should be granted to an incarcerated prisoner, the opinion opens a vast new area of federal litigation. This case illustrates the truth of the statement of Mr. Justice Douglas “that any principle once announced may in time gain a momentum not warranted by the exigencies of its creation.” H. K. Porter Co. v. N. L. R. B., 397 U.S. 99, 110, 90 S.Ct. 821, 827, 25 L.Ed.2d 146, 155.
In the very beginning it should be noted that this is not a case in which the Board of Parole has failed to give consideration to appellant’s eligibility for release on parole. He has not languished in prison without notice or attention by the Board. Indeed the Board has conducted two hearings and Scarpa has twice been considered for parole by the Board within three years after his sentence. See Scarpa v. U. S. Board of Parole, 5 Cir., 453 F.2d 891. He was convicted on June 13, 1968 and sentenced to eight years. He was granted a parole hearing on October 13, 1969. He was given a second hearing by the Board»in June 1971. We originally dismissed the appeal as moot because appellant’s diligent counsel agreed with the U. S. Attorney that the appellant was accorded full and fair consideration by the Board at the second hearing. Scarpa strenuously objected and this petition for rehearing was filed as a consequence.
The doctrine of finality in criminal cases is gasping for life and it may not survive. Under judge-made rules the criminal processes bog down, the courts are crowded with litigation and many criminal cases are never terminated. It is not now enough under the majority decision to have a police investigation, arrest, appearance before a federal magistrate, investigation and indictment by a duly constituted grand jury, arraignment, assurance of counsel, trial, direct appeal, and repeated re-examination by habeas corpus or motions for post-conviction relief. In addition to all of the foregoing procedures the majority concludes that courts should review the actions and conduct of .the U. S. Board of Parole, and if I understand the decision, we are to disregard the expertise of the Board and review its actions as though it were a trial court. This is not a proper function of the courts. The routine granting or denial of parole should be left to the Board. Unless there are exceptional circumstances such as fraud, conduct beyond the authority granted by statute, or some other exceptional circumstances, the court should not interfere with the Board. To require the courts to review the action of the Board in denying parole on mere allegations that the Board did not accord the prisoner due process in its investigation and determination of the suitability of the inmate for release is an unwarranted intrusion by the courts into an area in which we are not authorized to act either by statute or by common sense.
Courts are not qualified or authorized to act as super hoards of parole, >and they should not endeavor to do so. The *40district court gave adequate consideration to appellant’s petition. A copy of that opinion is attached to this dissent as Appendix A. Since the district court rendered its opinion the appellant has been considered by the Board a second time as stated earlier.
The appellant contends that there was a lack of minimal standards of due process in hearings before the Parole Board as required by the due process clause of the Fifth Amendment. In his brief on petition for rehearing counsel for appellant contends that appellant is entitled to the following:
1. A hearing before an objective and impartial examiner;
2. adequate notice of that hearing;
3. an opportunity to confront and cross-examine adverse witnesses;
4. a right to retain counsel;
5. a determination stating reasons therefor and an indication of the evidence and rules relied upon.1
Yielding to the arguments of the appellant the majority has reversed the action of the district court because this court has concluded that under the allegations the Parole Board did not give appellant’s case proper consideration. If the majority opinion becomes the law of this circuit, it is my prediction that in the future there will be eases claiming that the examiner was not impartial; that notice of the hearing was not sufficient; that the opportunity to confront and cross-examine witnesses was not sufficiently protected; counsel was ineffective; and that the findings of fact and conclusions of law were not supported by the evidence produced.
The apparent anxiety of judges to supervise and protect every phase of activity relating to criminal defendants both before and after conviction has given rise to numerous rules, “sub-rules, variations and exceptions which even the most alert and sophisticated lawyers and judges are taxed to follow.” See Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969, Burger, dissenting opinion). The courts are becoming entrapped by their own eagerness and are assuming such unnecessary burdens by interfering with the duties of other governmental departments that they are unable to discharge the duties for which they were created.
The functions of the Parole Board are succinctly set forth in statutory language :
If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.2
The majority opinion does not give proper consideration to the requirement of the statute that the prisoner should be released upon parole only if the Board concludes that he is eligible for release, will live by the law, and that “such release is not incompatible with the welfare of society.”
*41In my view it is only fair to say that in addition to all other remedies now available to criminal defendants, including extensive and elaborate post-conviction proceedings, the majority has today created another category of review by requiring a hearing to determine whether a prisoner is entitled to relief under the declaratory judgment act. It is doubtful that the sponsors of the declaratory judgment remedy ever had any notion that it would be used as a post-conviction proceeding which would enable the courts to second guess the U. S. Board of Parole. That Board is composed of people who are trained and possessed of the expertise necessary to pass upon the release of prisoners. It is regrettable that the majority has laid the predicate which will require this court to supervise, review, and possibly reverse the action of the Board.
Parole is not a matter of right, it is a matter of legislative grace. Smith v. United States, 1963, 116 U.S.App.D.C. 404, 324 F.2d 436, cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975; Lathem v. United States, 259 F.2d 393 (5th Cir. 1958); Berry v. U. S. Parole Bd., 266 F.Supp. 667 (D.C.Pa.1967). Mere eligibility for parole does not entitle the prisoner to release. He must obey the rules of the institution. 18 U.S.C. § 4202. It is for the Board to determine that there is a reasonable probability that he will live and remain at liberty without violating the law, and that it is not incompatible with the welfare of society that he be released. 18 U.S.C.A. § 4203(a); Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965); Peterson v. Rivers, 121 U.S.App.D.C. 327, 350 F.2d 457 (1965); Losieau v. Hunter, 90 U.S.App.D.C. 85, 193 F.2d 41 (1951).
Probation is a function of the courts but parole operates upon different principles. The grant of parole, pardon or commutation of sentence, are in all essential respects wholly functions of the Executive Branch of the government. Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971); Thompkins v. U. S. Board of Parole, 427 F.2d 222 (5th Cir. 1970); United States v. Frederick, 405 F.2d 129 (3d Cir. 1968); Schawartzberg v. United States Board of Parole, 399 F.2d 297 (10th Cir. 1968); 3 Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967);4 Cagle v. Harris, 349 F.2d 404 (8th Cir. 1965).
*42APPENDIX A
United States District Court Northern District of Georgia
Atlanta Division
Robert J. Scarpa
Civil Action
No. 14249
versus
United States Board of Parole;
Walter Dunbar, Chairman, et al.
ORDER
Petitioner, an inmate at the United States Penitentiary in Atlanta, is presently serving a sentence imposed pursuant to 18 U.S.C. § 4208(a) (2) by the United States District Court for the Eastern District of New York. Petitioner has filed exhaustive pro se pleadings seeking a declaratory judgment with respect to the constitutionality of the consideration petitioner received from the Parole Board at a parole eligibility hearing. Though originally filed in the United States District Court for the District of Columbia, the case has subsequently been transferred to this court.
Petitioner asserts federal jurisdiction in this case under the provisions of 28 U.S.C. §§ 2201, 2202. Since neither of these statutes confers jurisdiction on this court but rather specify a remedy available when jurisdiction is properly invoked, it is questionable whether this court has any jurisdiction to consider petitioner’s claim. However, even assuming that jurisdiction is proper, petitioner is not entitled to the relief he seeks.
Petitioner repeatedly asserts that he does not question the discretionary nature of the Parole Board’s authority to grant or deny parole. He does contend, however, that he is entitled to consideration for parole which complies with due process requirements. Petitioner’s primary complaint centers around the Board’s failure to investigate information which he submitted to it. Petitioner specifically objects to the failure to contact members of his family and his proposed employer and parole adviser. Petitioner further contends that the Board should have obtained his record from a New York state prison from which he had recently been released on parole and charges that the Board relied solely on his prior criminal record in denying parole. Upon the totality of these circumstances, petitioner claims he has been denied due process.1
Though the court supports a full, fair hearing and consideration prior to a parole decision, it cannot say on the facts of this case that petitioner was denied due process. A prisoner’s prior criminal record is a legitimate item of consideration in determining whether one is to be released on parole. Riley v. Perini, 422 F.2d 397 (6th Cir. 1970); Jones v. Salisbury, 422 F.2d 1326 (6th Cir. 1970). If upon petitioner’s record the Board determined that petitioner was not a suitable risk for parole, then this court will not interfere with the decision. To require the Board to go through a time-consuming, expensive investigation, after the Board had received sufficient information to conclude that parole would not be appropriate at this time would be a futile exercise and would not enhance due process.
Additionally, petitioner complains of (1) questions asked at the parole hearing, (2) the reports before the parole examiner, (3) statements by petitioner’s caseworker with respect to parole, and (4) non-compliance with 18 U.S.C. §§ 4203, 4208(c). The Board’s failure to comply with statutory requirements has not been shown by petitioner and there is nothing in his other allegations to indicate that he was prejudiced at his hearing. Petitioner’s erroneous perspec*43tive on his case apparently stems from his mistaken belief that the parole hearing constituted his entire parole consideration. Prior to the hearing reports are compiled. At the hearing the parole applicant is questioned. Subsequently, the parole examiner considers the file, prepares a report, including a recommendation, and submits it to the Board of Parole, which takes final action in the ease. 28 C.F.R. § 2.15.
It is well settled that matters relating to parole are vested solely in the Board of Parole, and the federal courts will intervene only in exceptional cases. This is not such a case. The action taken by the Board was neither arbitrary nor an abuse of discretion and there has been no deprivation of constitutional rights merely because petitioner did not receive exactly the type of consideration he may have desired.
It is therefore ordered that the relief requested in the petition be and the same is hereby denied.
This 17th day of February, 1971.
(Signed) NEWELL EDENFIELD
Newell Edenfield
United States District Judge
ON COURT’S MOTION
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
BY THE COURT:A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc,
It is ordered that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. Items 1 through 5 are taken from the petition for rehearing filed by appellant’s counsel. The Government’s brief is in substantial agreement with appellant’s counsel as to the issues presented. The following is from the Government’s brief on petition for rehearing:
Petitioner, in his petition for rehearing, has indicated four areas where the Parole Board has failed to comply with due process requirements: 1. By failure to allow the prisoner to be represented by counsel or a lay individual to act as counsel, 2. By failure to allow the prisoner an opportunity to question persons making unfavorable reports, 3. By failure to allow the prisoner access to hearing records, and 4. By failure to make written findings of fact and conclusions of law.
. 18 U.S.C. § 4203.
. In Schawartzberg v. United States Board of Parole the appellant claimed the right to counsel at his parole hearing, but further claimed that his constitutional rights were violated when he was accused and interrogated concerning other issues at the parole hearing. The court concluded:
The inquiries made at a parole hearing are for the purpose of determining whether the prisoner and society would benefit from minimal physical custody and not to impose additional punishment for other offenses. Under such circumstances we cannot conclude that such questioning violated any constitutionally protected right.
. In Brest v. Ciccone the petitioner alleged the wrongful denial of parole by the U. S. Board of Parole because he alleged it acted upon untrue and prejudicial reports; that the Board was aware of the false statements it considered, was guilty of “malfeasance in office”; and that he was denied “equality of justice” inasmuch as other prisoners in like circumstances, including his co-defendant, had been paroled. He further alleged the use of inaccurate, false and erroneous progress reports. The petition was dismissed and in passing upon such dismissal the court succinctly stated:
The District Court’s denial of appellant’s petition must be affirmed. By the language of 18 U.S.C.A. § 4203, the Board of Parole is given absolute discretion in matters of parole. The courts are without power to grant a parole or to judicially determine eligibility for parole. Furthermore, it is not the function of the courts to review the discretion of the Board in the denial of applications for parole, or to repass on the credibility of reports and information received by the Board in making its determinations. Cagle v. Harris, 349 F.2d 404, 405 (8th Cir. 1965), cert. denied, 382 U.S. 965, 86 S.Ct. 455, 15 L.Ed.2d 369 (1965). Cf. Wright v. Settle, 293 F.2d 317, 319 (8th Cir. 1961).
By his petition appellant seeks a redetermination by the court by his eligibility for *42parole. The courts have no jurisdiction and no power to so review or control the discretion of Parole in the exercise of its duties under § 4203..
. Petitioner also claims his parole consideration constitutes cruel and unusual punishment. This allegation has no merit and needs no discussion.